Can anyone use architects’ drawings and building plans for a building once planning permission has been granted? Are there restrictions? What are the copyright considerations when buying land with granted planning permission? Intellectual Property partner, Hazel McDwyer considers the risks and provide some tips to stakeholders in the Built Environment sector.
As the housing crisis continues to dominate the social and political landscape in Ireland, everyone agrees that a significant ramping up of building is required.
However in the scramble to construct housing, developers and land purchasers need to ensure that they are not infringing copyright. We consider some of the issues associated with copyright and planning permission and discuss the practical considerations that should be taken into account.
Artistic works, under the Copyright and Related Rights Act 2000, include works of architecture, being either buildings or models as well as diagrams, drawing, plans and charts. When an architect, building designer, engineer or equivalent creates an original plan or drawing, copyright subsists in such materials. This is the case regardless of artistic quality.
The question of copyright in architects’ and engineers’ drawings often arises in the context of planning and development. For instance, once planning permission is granted and obtained using planning drawings, can anyone use the drawings to build the building?
Is there an implied licence to use the plans where planning permission has been granted?
While the architect retains copyright in the artistic work, it may be the case that a licence to replicate features of the copyright design may be inferred. However, the courts take into account the adequacy of the consideration, whether it is fair to the parties and whether the additional work was anticipated at the time of first commissioning. In general, implied licences in contracts are interpreted narrowly by courts.
It shouldn’t be assumed that the licence will always be inferred and attach to the land for future buyers, where planning permission has been granted. In the 2021 UK case of Lennox Estates Ltd v S&W Ventures Ltd, a developer, Lennox, had an option to buy land, subject to planning permission. Lennox engaged architects and used their planning drawings to obtain planning permission. Copyright in the plans was also later assigned to Lennox. However, the option lapsed and Lennox did not acquire the land. The landowner sold the land to a third party, with the benefit of planning permission. The third party asked its architects to alter the plans and apply to vary the planning permission. Lennox successfully sued both the landowner and purchaser for copyright infringement. The Court refused to imply a licence into the option agreement with Lennox to the extent that the landowner could grant a sub-licence to any other developer it chose, allowing that other developer to exploit the drawings as the other developer required.
It is really important that contracts between architects and builders are clear on this point. This can particularly be an issue for large projects, where the entity that owns the land may be different from the entity who contracted with the architect.
Also, the granting of planning permission is only one stage in the development process. Significant amendments to the plans used to obtain planning permissions are needed to actually undertake a building project.
The “RIAI Agreement between Client and Architect for the Provision of Architectural Services” provides for a licence from the architect to the client to use, for the relevant project only, the designs which the client has commissioned, “provided the charges to the appropriate Work Stage has been paid by the client.”. In practice, this could cause issues as there could be a number of reasons that the client may not pay for a stage in the project, including issues caused by the architect. The licence may be required before the specific work stage relevant to the payment has been reached. This could lead to problems with the licence being granted to the developer.
Therefore, builders and developers need to ensure that their contracts with third party architects and designers provide clear, immediate rights to use the relevant drawings for the project.
- Developers should not seek to rely on presumed inferred rights to use plans. Ensure contracts with architects and other designers specifically include an immediate, irrevocable, royalty free, sublicensable, transferable licence to use, reproduce and amend the plans for the relevant project.
- If acquiring land with planning permission already granted, due diligence needs to be undertaken to ensure that all licences granted by all architects, designers, engineers etc, are granted to the correct party, transferable as part of the sale and sublicensable. It should not be assumed that just because planning permission has been granted, any purchaser can use, reproduce and amend drawings as needed.
- The developer may need to go back to the original copyright holder to obtain a licence for its requirements.
- Landowners selling land with planning permission also need to ensure that the licences have been granted to the correct entity and can be transferred and sublicensed as required. If not, this could scupper the deal.
For more information about registering trade marks and defending your organisation’s IP rights, contact a member of our Intellectual Property team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
  EWHC 3323 (IPEC)